Findings Of Fact At all times material hereto, the Respondent, Larry Lyles, was the holder of Florida Beverage License No. 26-2105, license series 2ABS. The licensed premises to which this license was issued is Larry and Gail's Pool Hall, 306 West Eighth Street, Jacksonville, Florida. On August 11, 1982, Mr. Keith Bernard Hamilton, a beverage officer for the Division of Alcoholic Beverages and Tobacco, went to the licensed premises pursuant to an assigned drug investigation. Officer Hamilton, after entering the licensed premises, purchased a beer from Gail Thomas a/k/a Patricia Ann Thomas. Gail Thomas was tending bar. After purchasing the beer, Officer Hamilton sat in a chair approximately 20 feet from the bar, and a few minutes later, approached a young man named Larry and asked about buying some smokes". "Smokes" is a term commonly used to refer to marijuana. Larry asked him how much he wanted and whether he had the money with him. Officer Hamilton stated he wanted two (2) bags and that he did have the money. Officer Hamilton then gave Larry $10 and Larry walked over to a young man named Hamp. Larry handed Hamp the $10 in currency and Hamp handed Larry two small manila envelopes. This exchange took place approximately five feet from the bar in the presence of Gail Thomas. Gail Thomas was one of the owners of the bar. The conversation between Officer Hamilton and Larry was in a normal tone of voice and could have been easily overheard by Gail Thomas and others in the bar. After receiving the two () manila envelopes from Hamp, Larry handed them to Officer Hamilton. Later, lab analysis revealed that these two envelopes contained cannabis, a controlled substance under Chapter 893, Florida Statutes. On August 20, 1982, Officer Hamilton returned to the licensed premises. After entering, he purchased a beer from Gail Thomas and began playing pool. When Gail Thomas began cleaning a table near the pool table, he asked her if anyone had "smokes". She said no but that someone next door might. She then indicated she was going next door to get change. She left, and upon returning, she informed Officer Hamilton that a man next door had some "smokes". She then asked if he wanted her to get some for him. He said yes and gave her $20 in currency. She left and came back with two manila envelopes and two $5.00 bills as change. Later, lab analysis revealed that the two manila envelopes contained cannabis, a controlled substance under Chapter 893, Florida Statutes. On August 21, 1982, Officer Hamilton again visited the licensed premises, and upon entering, purchased a grape soda from Gail Thomas. He saw the young man named Hamp shooting pool and walked over to him and asked him about purchasing some smokes. Hamp said he had some real good stuff and that if he didn't like it, he would buy it back. Officer Hamilton then purchased one manila envelope from Hemp. The exchange took place in the presence of Gail Thomas, who was nearby cleaning tables. After the exchange, Hemp suggested to Officer Hamilton that he try some of the material in the envelope there in the bar. Officer Hamilton declined and Hamp told him "It's okay, Gail doesn't care". Later, lab analysis revealed that the envelope purchased from Hemp contained cannabis, a controlled substance under Chapter 893, Florida Statutes. At the time of each of the purchases on August 11, 20, and 21, 1982, Gail Thomas was the only bartender or person actually working in the licensed premises. Officer Hamilton never observed another employee or person supervising or maintaining in any way the licensed premises.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondent's alcoholic beverage license be revoked. DONE and ENTERED this 30th day of June, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1983. COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Larry Lyles 306 West Eighth Street Jacksonville, Florida R. R. Caplano, Captain Division of Beverage Post Office Box 5787 Jacksonville, Florida 32202 Mr. Gary Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Howard M. Rasmussen Executive Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether Respondent committed the acts alleged in the Administrative Actions dated July 7, 2008, and September 5, 2008, and, if so, what disciplinary action, if any, should be taken against Respondent.
Findings Of Fact At all times material to this matter, Respondent was licensed under the Florida Beverage Law by the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco. Respondent is subject to the regulatory jurisdiction of Petitioner, having been issued License Number 26-07803, Series KLD, by Petitioner. A Series KLD license is one issued by Petitioner to distribute alcoholic beverages. Petitioner seeks to impose sanctions on Respondent for violations of Subsection 561.29(1)(a), within Subsection 561.29(1)(a), within Subsection 561.55(3)(a), Florida Statutes, on February 18, 2008. Petitioner also seeks to impose sanctions on Respondent for violations of Subsections 561.411(1)(a) and (b), Florida Statutes, for the period on December 1, 2006, through November 30, 2007. Christopher John Eiras (Eiras) is the managing director of Respondent distributing company. Eiras closed on the purchase of Respondent on August 31, 2007. Although he took over ownership of Respondent on that date, he had been involved with helping the company since its inception and had been directly involved in the creation of the business. Respondent, as a corporate entity and the holder of the license, is ultimately responsible for the violations alleged in the Administrative Action, if proven. Moreover, Eiras kept the records for the audit period at issue in his house and, therefore, had control over the records requested by Petitioner. Petitioner performed an audit of Respondent for the time period of December 1, 2006, through November 30, 2007. In the course of the audit, and pursuant to Subsection 561.29(1)(j), Florida Statutes, Petitioner requested that Respondent produce certain records. Pursuant to Florida Administrative Code Rule 61A-4.023, "distributors shipping or delivering alcoholic beverages for consumption outside the confines of the State of Florida must supply the Division with a copy of the bill of lading, must show the type of beverages, amount by size container and gallonage of each type shipped by common carrier or licensees' vehicles and a certificate from a representative of the appropriate agency of the jurisdiction into which the alcoholic beverages were shipped stating the shipment has been reported properly to that agency." Respondent supplied general documentation from FedEx and UPS regarding shipments, but Petitioner believes this documentation falls short of what is required by Florida Administrative Code Rule 61A-4.023. The records requested by Petitioner are significant because they form the basis for giving a distributor a deduction from the payment of excise tax, the tax required to be remitted to the State of Florida, for out-of-state sales. The distributor must pay the excise tax on the sale of alcoholic beverages within Florida. Petitioner had worked closely with Respondent and made numerous attempts to bring Respondent into compliance through its records production. Because Eiras was the new owner of Respondent, and because the former auditor (with 37 years of experience) passed away during the audit of Respondent, the new auditor, Margaret Perez, gave Respondent what she termed "an enormous gift" by settling the audit for liabilities of $829.39 and $45.22, with the understanding that Respondent would still produce the requested records. Petitioner issued two letters related to the audit. The first, dated August 15, 2008, found a liability of $45.22, and required payment within ten days of receipt of the letter. No mention was made in the letter of any documents required to be produced by Respondent. Respondent timely paid the $45.22 liability. The second, dated August 18, 2008, found a liability of $828.39 and required payment within 10 days of receipt of the letter. No mention was made in the letter of any documents required to be produced by Respondent. Respondent timely paid the $828.39 liability. Petitioner testified that acceptance of the payments from Respondent did not excuse the production of documents, yet no official communication was issued by Petitioner requiring such production following the August letters and payment of the liabilities set forth in those communications by Respondent. Additionally, pursuant to Subsections 561.411(1)(a) and (b), Florida Statutes, Respondent is required to own "an inventory of alcoholic beverages which is equal to at least 10 percent of the distributor's annual case sales to licensed vendors within this state or to licensed vendors within the malt beverage distributor's exclusive sales territory; or [a]n inventory for which the cost of acquisition is not less than $100,000." The Distributor Qualifications audit showed that Respondent had zero value for its inventory. Further, although Respondent claimed inventory for two supplier products, Urban Brands and Happy Vodka Corporation, both of which are owned by Eiras, Petitioner has not received proof of payment for these products from Respondent that satisfies its interpretation of the requirements of law. Respondent supplied company-generated spreadsheets which, it argues, are sufficient to comply with Petitioner's requirements. These spreadsheets specifically list the inventory as of August 31, 2007, the date of the purchase of Respondent by Eiras from Gray Solomon, the previous owner. The inventory is listed by item number, item description, number of items on hand, average cost per item, percent of total asset, sales price, retail value, percent of total retail, and owned inventory. This detailed spreadsheet shows a total owned inventory of $139,964.24, an asset value of $480,731.15 (most of which is under bailment for other suppliers), and a total retail value of $624,140.59 for all product, whether owned or under bailment. Petitioner expected to receive the source documents or back-up for the inventory and sales. Respondent provided canceled checks and invoices at some point that it believed satisfied this request. Clearly, Respondent was not timely in its response to Petitioner's document requests. Respondent supplied documents such as invoices and bills of lading showing deliveries to Respondent's warehouse in Jacksonville and shipments to locations both within Florida and out-of-state. A question remains as to whether the back-up material fully responds to Respondent's requests for production of documents under Subsection 561.29(1)(j), Florida Statutes, for the audit period. Petitioner has not accepted the documentation provided by Respondent as proof of Respondent's compliance with the audit document request. No complete explanations were offered by Petitioner as to why it would not accept Respondent's documentation as at least some evidence of Respondent's intent to comply with Petitioner's document request. Petitioner offered testimony that it believed shipments were being made by entities other than Respondent. The documentation supplied by Respondent, however, shows numerous shipments and receipts of alcoholic beverage products in the name of "Liquor Group Florida" or "Liquor Group Florida, LLC."
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order as follows: Assessing a $500.00 fine against Respondent for violating Subsection 561.29(1)(j), Florida Statutes; Ordering Respondent to produce all reasonably requested records for any and all future audits, including, but not limited to, bills of lading as required by Florida Administrative Code Rule 61A-4.023, for sales made outside of Florida; Dismissing the Administrative Action against Respondent alleging violations of Subsection 561.411(1)(a) or (b), Florida Statutes; and Dismissing the Administrative Action against Respondent alleging violations of Subsection 561.55(3)(a), Florida Statutes. DONE AND ENTERED this 4th day of June, 2009, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 2009. COPIES FURNISHED: Sarah Christine Naf, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 40 Tallahassee, Florida 32399-2202 Joshua B. Moye, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Christopher John Eiras 830-13 A1A North, No. 155 Ponte Vedra Beach, Florida 32082 Ned Luczynski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jerry Geier, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether the Respondent's alcoholic beverage license should be revoked, suspended, or otherwise disciplined for a violation of Section 562.11, Florida Statutes, a provision of the Florida Beverage Law, which prohibits the sale of alcoholic beverages to a minor. At the formal hearing the Petitioner called as witnesses: Thomas L. Stout, Bernard W. Cooper, Timothy J. Culley, and Craig Brady Cooper. Mr. Antonino Sciarrino testified on behalf of respondent. The Petitioner offered and had admitted into evidence two exhibits and the Respondent offered no exhibits into evidence. Both the Respondent and counsel for the Petitioner submitted proposed findings of fact and conclusions of law for consideration by the hearing officer. To the extent that those proposed findings and conclusions of law are inconsistent with the findings and conclusions contained within this order they were considered by the hearing officer and rejected as being unsupported by the evidence or unnecessary to the resolution of this cause.
Findings Of Fact At all times material to this action the Respondent was the holder of beverage license number 21-478, Series 2COP. This license was issued for the licensed premises located at 499 Goodlette Road, Naples, Florida. The licensed premises is a convenience store that also sells various types of food and dry good items plus sandwiches and beer. The Goodlette Food Mart, Inc. is owned and managed by Antonino Sciarrino, the President of the Respondent corporation. The Goodlette Food Mart opened for business on January 1, 1982. Prior to this time Mr. Sciarrino operated a deli in New York City where he also sold beer. Sometime during October, 1982 (the specific date being unknown) , Craig Cooper, a minor, 16 years of age was stopped by a Naples police officer and found to be in the possession of a six-pack of beer. This beer had been purchased by Craig Cooper at the Goodlette Food Mart and he informed the police officer of this fact. Mr. Cooper was asked by the police officer if he would be willing to cooperate in a controlled buy at the Goodlette Food Mart. Mr. Cooper indicated that he would. Subsequent to the October stop Craig Cooper agreed to cooperate with the police in making a controlled purchase of alcoholic beverages at the Goodlette Food Mart and on November 6, 1982, Mr. Cooper was contacted by a Naples police officer and was given cash. He was asked to go to the Goodlette Food Mart and to use the cash he had been given to attempt to purchase alcoholic beverages. From the police station Craig Cooper drove to the Goodlette Food Mart and Officer Culley of the Naples Police Department followed him. While Craig Cooper went inside the Goodlette Food Mart Officer Culley observed from the parking lot, Craig Cooper entered the Goodlette Food Mart and went directly to the cooler area where soft drinks and alcoholic beverages are kept. He removed a six-pack of Heineken Beer. He then proceeded to the cash register and paid for the beer. The cashier on duty was Robert Peterson. He did not question Craig Cooper or ask him for any identification at the time that Mr. Cooper paid for the beer. Mr. Cooper then left the store and turned the beer over to Officer Culley. At the time of the purchase by Craig Cooper, the manager Antonino Sciarrino was not present in the store. Mr. Sciarrino, was in the store 10 to 12 hours a day, but was generally not present in the evenings. Robert Peterson had been hired as a part-time employee approximately two or three months prior to November 6, 1982. Mr. Sciarrino had no prior problems with Robert Peterson and was not aware of any instances where he had sold beer to minors. At the time Robert Peterson was hired, he was instructed to not sell to minors and to always ask for and check identification prior to selling alcoholic beverages. There was also a sign posted in the employees room where they clock in and clock out which warned them that they could be criminally prosecuted for failing to check identification and for selling alcoholic beverages to minors. The Goodlette Food Mart had a policy against selling to minors and all employees were instructed regarding this policy and were required to check identification prior to selling alcoholic beverages. There were signs posted on the cooler and the cash register informing customers that minors were prohibited from purchasing alcoholic beverages and that identification was required, There was also a sign next to the cash register which reminded the cashier to check the customers' I.D. when purchasing alcoholic beverages. This sign also gave the date and year which the birthdate on the identification had to predate in order for the person to purchase alcoholic beverages. The purpose of this sign was to enable employees to more efficiently and more accurately check identifications. Immediately following notification of the November 6, 1982, sale to Craig Cooper, Mr. Sciarrino terminated Robert Peterson's employment with the Goodlette Food Mart.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED: That thee Respondent be found not guilty of the violation charged in the Notice to Show Cause and that the charge be dismissed. DONE and ORDERED this 14th day of October, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1983. COPIES FURNISHED: Janice G. Scott, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Antonino Sciarrino, President Goodlette Food Mart, Inc. 499 Goodlette Road Naples, Florida Gary Rutledge, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 Howard M. Rasmussen, Director Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact In support of petitioner's application for transfer, one Robert Shepard Pierpont completed respondent's form 710-L, "Personal Questionnaires' signing it in a blank labeled "Signature of Applicant." Mr. Pierpont would like to operate the establishment in Broward County for which the present license transfer is sought. He has invested forty thousand dollars ($40,000.00) in the proposed operation and stands ready to invest another like amount. For some 20 years Mr. Pierpont has owned and operated bars and restaurants. In August of 1976, a minor obtained something alcoholic to drink at a restaurant operated by Mr. Pierpont in Branford, Connecticut. Even though he was unaware of the events at the time, Mr. Pierpont was convicted, on November 10, 1976, of "sales to minor" in the West Haven, Connecticut, Court of Common Pleas, as a result of the incident. Mr. Pierpont has never been convicted of any other violation of any beverage law.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioner's application for transfer of license unless, within twenty days, Mr. Pierpont furnishes respondent an affidavit reciting that he is not a corporate officer of petitioner. DONE and ENTERED this 17th day of November, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John V. Russell, Esquire 312 S.E. 17th Street Ft. Lauderdale, Florida 33136 Mary Jo M. Gallay, Esquire Staff Attorney 725 South Bronough Street Tallahassee, Florida 32304
